[2000] KEHC 250 (KLR)
The court found that although the appellant was armed with a revolver and attempted to rob the complainant, the injuries sustained by the complainant and P.W.2 were only minor and classified as harm, not grievous harm. Therefore, the facts did not support a conviction under section 297(2) of the Penal Code, which...
Source-derived case information.
- Citation
- [2000] KEHC 250 (KLR)
- Parties
- Appellant: James Mwangi Njuguna; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 128 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction substituted and sentence varied
- Legal Topics
- Attempted Robbery, Sentencing, Firearms Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwangi Njuguna
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction under section 297(2) of the Penal Code for attempted robbery was proper in light of the evidence.
- 2 Whether the sentence of death should be set aside and substituted with a conviction and sentence under section 297(1) of the Penal Code.
Ratio Decidendi
The court found that although the appellant was armed with a revolver and attempted to rob the complainant, the injuries sustained by the complainant and P.W.2 were only minor and classified as harm, not grievous harm. Therefore, the facts did not support a conviction under section 297(2) of the Penal Code, which requires more serious harm or violence. The court held that the appropriate conviction should be for simple attempted robbery under section 297(1) of the Penal Code. Consequently, the death sentence was set aside and replaced with a sentence of five years imprisonment and three strokes, with the sentence to run concurrently with the four-year sentence for unlawful possession of a...
Court Disposition
conviction substituted and sentence varied
Orders
- Conviction on count one substituted for attempted robbery under section 297(1) of the Penal Code.
- Death sentence set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI APPELLATE SIDE CRIMINAL APPEAL NO.128 OF 2000
JAMES MWANGI NJUGUNA...............................................APPELLANT
versus
REPUBLIC..........................................................................RESPONDEN
J U D G M E N T
On the 1st count the appellant was convicted of attempted robbery, contrary to section 297(2), P.C. and sentenced to death.
On the 2nd count the conviction was for unlawfully possessing a fire arm, contrary to section 4(2) of the Firearm Act, and he was sentenced to four years imprisonment.
The appellant now accepts both the convictions as proper saying he admits he committed the said offences.
However, he requests that the conviction on the 1st count be substituted for attempted robbery, contrary to section 297(1), P.C. and the death sentence be set aside.
The evidence was that the appellant jointly with the others went to the complainant’s Bar along Tom Mboya Street on 2/7/99 at about 2 p.m. and attempted to rob the complainant. The appellant was armed with a revolver at the time and he pointed it at the complainant but the complainant Managed to pounce on the appellant, struggled with him and held him together with the revolver. One of the two cronies of the appellant had also a pistol and the complainant’s friend (P.W.2) struggled with the said robber but that one with the 3rd one managed to run away.
P.W.2 assisted the complainant in locking up the appellant with the revolver. The Police came and picked up the appellant and took possession of the Revolver (Ex.1).
I have considered the recorded evidence together with the appellant’s request for the substitution. The complainant and P.W.2 received only minor injuries classified as harm during the course of the attempted robbery.
In my considered view the Police should have brought the charge in this case contrary to section 297(1), P.C. rather than 297(2). The learned lady State Counsel Miss Wanyama has no serious objection to the substitution asked for either.
Order:
On Count No.1: I substitution the conviction for simple attempted robbery, contrary to section 297(1), P.C. and set aside the death sentence. I sentence the appellant to 5 years imprisonment with effect from 4th February, 2000 together with three strokes. The sentence of Four years imprisonment on the 2nd count stands. The prison sentences on the two counts to run concurrently.
V.V. PATEL
JUDGE
22/6/2000